Paul Arnell: Supreme Court backs judgment of Scottish Parliament in making compensation law

The relationship between the UK Supreme Court and Scots law is again in the news.

Almost a year to the day after the Cadder decision on the right to the presence of a lawyer during police questioning, and five months since the decision in the Nat Fraser case, the Supreme Court has passed judgment on the validity of an act of the Scottish Parliament.

The insurance companies argued that the Damages (Asbestos-related Conditions) Act 2009 gave rise to a breach of human rights, and that its enactment was unreasonable, irrational and arbitrary.

The Supreme Court upheld the validity of the act.

It held that it was appropriate to respect the judgment of the Scottish Parliament in matters of social policy as to what is in the public interest unless that judgment is manifestly without foundation.

The act, the Supreme Court held, had a legitimate aim – the elimination of “social injustice”.

Whilst the decision is of undoubted significance to those with pleural plaques, the Supreme Court judgment is also interesting constitutionally.

The Supreme Court, in the case, considered the validity of an act of the Scottish Parliament.

It is wholly entitled to do so because the Scottish Parliament is limited in its competence, and questions over that competence are heard by the Supreme Court.

The Scottish Parliament may not make law that, for example, violates human rights or concerns matters that have been reserved to the United Kingdom parliament and government.

In a constitutional sense, yesterday’s judgment is perhaps more notable than the Cadder and Fraser cases in that it related to the lawful ability of the democratically elected Scottish Parliament to make law.

Had the Supreme Court upheld the arguments of the insurance companies, there is little doubt loud and strident criticism would have ensued.

This criticism would have been considerably more justifiable than that which followed the previous decisions.

Yesterday’s decision of the Supreme Court was “warmly welcomed”, and rightfully so, by Kenny MacAskill.

This stands in stark contrast to his and Alex Salmond’s reaction to the previous decisions.

The contrasting reactions turn not on whether the decisions were correct in law, but whether they were in Scotland’s interest as defined by the present Scottish Government.

• Dr Paul Arnell is an expert in constitutional law at Robert Gordon University.